Senate Judiciary Committee Democrats seem to have begrudgingly accepted the inevitability of Judge Amy Coney Barrett’s confirmation to the Supreme Court, as they’ve shifted from arguing against her joining the court to demanding that she recuse herself from certain cases.
Barrett has refused to play their hypothetical games, however, insisting instead that if she is confirmed, she will follow the existing rules on recusal for justices on a case by case basis, The Hill reported.
Democrats demand recusal
At the heart of the Democrats’ demands for Barrett’s preemptive recusal is the upcoming challenge to the Affordable Care Act, better known as Obamacare.
Their argument is that since Barrett has previously displayed “hostility” to the law — an accusation she flatly denied — then she would be incapable of issuing a fair ruling.
Committee Chairman Lindsey Graham (R-SC) picked up on the Democrat calls for recusal and asked the nominee about it himself, Fox News reported. Barrett said she would decline to preemptively recuse herself from any pending or future cases, citing existing law and the examples set by prior justices, such as the late Justice Ruth Bader Ginsburg.
It doesn’t end there
Barrett was also asked about recusal by Sen. Patrick Leahy (D-VT). She replied that she would have to consult with the other jurists after reviewing the specifics of a particular case and that to commit to a recusal right now would mean “short-circuiting that entire process,” Fox News reported.
Sen. Amy Klobuchar (D-MN) also raised the issue of recusal, not just in relation to the impending Obamacare challenge but with regard to any potential cases about the 2020 election results.
As National Review’s Andy McCarthy noted, that line of argument supposes that Barrett, having been nominated by President Donald Trump, would be unable to rule fairly on any cases involving him and his reelection effort. McCarthy countered by fully pursuing that line of thinking to note that both Justices Neil Gorsuch and Brett Kavanaugh, also having been nominated by Trump, would be also forced to recuse themselves.
Furthermore, McCarthy wrote, the argument for recusal could then justifiably be extended to Justices Elena Kagen and Sonia Sotomayor, both of whom were nominated by former President Barack Obama and strongly supported by former Vice President Joe Biden, who is now the Democratic presidential nominee.
Dems know it’s already over
In the end, this push from Democrats for a preemptive recusal from Barrett is little more than a quiet admission that, despite their objections and efforts to delay or derail her nomination, she will likely be confirmed and will soon be sitting on the bench.
If recusal is ever deemed necessary for Barrett, that decision will come following consultation with her colleagues and a review of the specifics of the particular case.
And it will certainly not come as a preemptive promise to embittered Democrats hoping to throw a wrench into the system at any given opportunity.